Law Professor Discusses Marriage Equality

Columbia Law School professor Suzanne Goldberg teaches civil procedure, a required course for first-year students that she says is about “how to take a problem in the world and turn it into a lawsuit, and then move that lawsuit through the system.”

Goldberg knows from experience how much a lawsuit moving through the system can accomplish. For nearly a decade, she initiated numerous civil rights lawsuits as a senior staff attorney for the Lambda Legal Defense and Education Fund. The most prominent was Romer v. Evans, in which the Supreme Court invalidated an anti-gay amendment to the Colorado Constitution; it was the first time the court had afforded “gay people constitutional protection against inequality,” Goldberg says. Seven years later, in Lawrence v. Texas, the court found a Texas sodomy law unconstitutional. In that case, Goldberg represented John Lawrence and Tyrone Garner in the Texas courts after they had been arrested for violating the state’s law against “homosexual conduct.”

But Goldberg is much more than just a litigator. As director of the Law School’s Sexuality & Gender Law Clinic , which she founded in 2007, she helps students use the law, legislative drafting, public policy advocacy and media commentary as ways of securing rights related to gender and sexuality. “We leave no stone unturned in our efforts to advance equality,” she says.

The clinic’s recent efforts have included helping a transgender refugee from Mexico obtain asylum in United States; submitting a brief to the New York Court of Appeals on behalf of a nonbiological mother who was denied access to the child she was raising with her former partner; and opposing the New York City police practice of using condom possession as evidence of intent to commit prostitution. (The practice discourages sex workers from carrying condoms.) In 2010, the clinic issued a report about families selling female children into domestic labor. “Our range of interests is diverse,” says Goldberg.

And what of same-sex marriage, the key gay-rights issue of recent years? In Perry v. Schwarzenegger, the case over California’s anti-gay-marriage Proposition 8, brought by David Boies and Ted Olson, Goldberg isn’t sitting on the sidelines. She filed a friend-of-the-court brief on behalf of the National Gay and Lesbian Task Force Foundation, in which she argued that Proposition 8 impermissibly establishes a regime of “unequal worth between gay and nongay people in California.” Goldberg, coauthor of the book Strangers to the Law: Gay People on Trial (University of Michigan Press, 1998), cheered the August decision by Judge Vaughn Walker finding Proposition 8 unconstitutional. Now she, along with nearly everyone who cares about civil rights, is waiting to see whether the case will reach the Supreme Court.

Q. Some gay rights groups were opposed to the California litigation, which they thought put too much at risk.

All of the other recent marriage cases have been brought on state constitutional grounds. By bringing a federal constitutional case, Boies and Olson opened up the possibility of U.S. Supreme Court review, which has national implications. It’s a lot of eggs in one basket, so people on both sides were right to be wary. On the other hand, Boies and Olsen have done a wonderful job litigating the case so far.

Q. Did Judge Walker do everything he could to keep his opinion from being overturned?

The Supreme Court would have the authority to revisit all of Judge Walker’s legal conclusions but cannot revisit his factual findings. That’s why Judge Walker wisely focused on facts. At trial, he asked, “What are the facts here?” And what happened was quite stark. The proponents of Proposition 8 hate the idea of same-sex couples marrying, but they could not support that sentiment with facts.

Q. Is there a danger that you’re underestimating your opponents’ case?

If there were good legal or factual arguments on the other side, they would have come out at the trial. The stakes were so high; Prop 8’s proponents knew they needed to defend the exclusion of same-sex couples from marriage with everything they had, and all they had were two witnesses that the court found not credible.

Q. What do you think of the argument that sexual-orientation discrimination is gender discrimination?

Judge Walker recognized that argument. And it seems to me to be quite right on two levels: First, if a man can marry a woman but not a man, the access to marriage turns on sex. On a deeper level, the only reason the state could have to limit marriage to different-sex couples is if the state maintained that men and women have meaningfully different roles in marriage. In fact, in an era when men and women had different legal obligations within the institution of marriage, limiting marriage to male-female couples made some amount of sense. The line drawing based on sex today is a vestige of the days when marital rights depended on gender. But those rights do not now depend on sex or gender, and they have not for some time.

Q. Do you think there is anything to the arguments supporting Prop 8?

The focus was basically on the irrationality of excluding same-sex couples from the protection of the Constitution. The court found that the rationales for Prop 8, which ranged from claims that Prop 8 would protect children to claims that male-female marriages are superior to same-sex couples’ marriages, were insufficient to justify the discrimination imposed by the measure. I understand why as a social matter people disagree about this issue. But we are past the point where there can be serious debate about the right of same-sex couples to marry as a constitutional matter.

Q. If it’s so clear that the Constitution mandates same-sex marriage, why wasn’t it clear, say, 20 years ago?

I think it was clear even 20 years ago, and some same-sex couples sought to marry even longer ago, though their challenges were rejected by courts. The difference between then and now is that in places like California, the state now treats gay and nongay people identically except with respect to marriage. It approaches sexual orientation as benign variation rather than a basis for differentiation. Twenty and more years ago that wasn’t the case.

At the end of the day, whenever the government discriminates, the question is: Does it have a legitimate basis for the lines it draws? It’s not that the fundamental constitutional framework changes, but our understanding of the grounds on which government can distinguish between people changes. This explains why we could have the Supreme Court in the late 1800s treat black people as not fully human and then in the mid-1900s reject racial segregation in schools as unconstitutional. That’s the essence of the relationship between law and social change.

Q. Did the case you brought, Romer v. Evans, have an impact on Perry v. Schwarzenegger?

In a sense, Romer laid the early groundwork for the current marriage litigation by rejecting government line-drawing that puts gay people on one side and nongay people on the other. Romer was also important as a ground-clearing opinion. The Supreme Court had previously issued a number of hostile opinions, including Bowers v. Hardwick, in 1986, in which it essentially said there is a gay exception to the Constitution when it rejected a gay man’s claim that constitutional privacy rights should bar the state from arresting him for having consensual sexual relations with another man in his own home. So Romer was groundbreaking both in recognizing constitutional protection for gay people and in shifting the tone of discussion about gay people as a social group.

Q. Where is the country on this issue?

We are now the only country in North America that doesn’t allow same-sex couples to marry. I guess I would describe us as in an adolescent phase about this issue. The opponents of marriage rights for same-sex couples have nothing to stand on other than discomfort with gay people and a desire to have the state reinforce gender roles. The public debate and even some of the lower court decisions are less about constitutional equality and more about emotion. Some of that is rooted in concern about same-sex couples raising children. But the data on same-sex couples raising children, which shows that the sexual orientation of the parents is not a factor in fostering healthy child development, is all but impossible to refute.

Q. Where do you predict society is headed on this issue?

The most virulent opponents, who are now screaming and yelling, will likely, or at least hopefully, move on. The demographic data shows that most young people cannot understand why this is a big deal. For most of them, it’s not even an interesting issue.

Q. Will the advent of same-sex marriage weaken the institution of marriage?

Initially, having same-sex couples marry will probably strengthen marriage, because right now there are gay people who have such a strong desire for marriage that they are likely to bring an extra commitment to it. I suspect that far into the future, when same-sex couples are able to marry freely, they will be about as good at marriage as different-sex couples are.

Q. If the case gets to the Supreme Court, how do you imagine Justice Anthony Kennedy will vote?

In the two biggest gayrights cases, Romer and Lawrence, Justice Kennedy understood that the Constitution’s protections, in order to be meaningful, must apply without regard to sexual orientation. There is no reason the same understanding should not carry over to a marriage case.

—Interview by Fred A. Bernstein

Columbia’s annual "Shall We Dance" brought New Yorkers together to learn how to samba, ballet and vogue on Low Plaza. (1:08)

Nicholas J. Turro, the William P. Schweitzer Professor of Chemistry, has been named the 2011 Arthur C. Cope Award recipient for outstanding achievement in the field of organic chemistry.

Louis Brus, the Thomas A. Edison Professor of Chemistry, will receive the 2011 Peter Debye Award in Physical Chemistry. The award, sponsored by E. I. du Pont de Nemours and Co., recognizes outstanding theoretical or experimental research in the field of physical chemistry.

Read the September 2010 Columbia Alumni Association Newsletter

This month’s edition includes information about insurance discounts, IvyLife networking events and upcoming Cafés Columbia.